Separation Of Powers: Fight brewing

Published 10:00 pm, Sunday, May 28, 2006

What's being billed as an attempt to defuse a confrontation may instead show that the White House is spoiling for a constitutional fight over separation of powers.

President Bush could have gracefully conceded that the FBI might have been out of line in its unprecedented rummaging through a congressman's office. Instead, he's ordered the confiscated materials sealed and held for 45 days to give time to negotiate with congressional leaders to find a way to get prosecutors what they want "in a manner that respects the interests of a coequal branch of government."

At issue here is not the guilt or innocence of Louisiana Democratic Rep. William Jefferson on bribery charges, or whether a member of Congress is above the law. At issue is whether the executive branch of the federal government can invade, search and seize documents from an office of the legislative (or judicial, for that matter) branch.

Surely no president would stand for congressional security folks rifling through White House files in search of damning material.

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The Constitution's so-called speech and debate clause has a long and storied history that can be traced back to the English Bill of Rights of 1689, according to research compiled on findlaw.com. In United States v. Brewster 1972, the Supreme Court explained that while a congressman taking a bribe was not immune from prosecution, the clause was "not written into the Constitution simply for the personal or private benefit of members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators."

The criminal case looks bad for Jefferson. There is a videotape of him accepting $100,000. Officers found $90,000 in cash stashed in his home freezer. Indeed, prosecutors would seem to have had plenty on Jefferson without risking a constitutional confrontation.

But even if Jefferson is proved corrupt, the larger concern is the harm that could be done by a corrupt executive seeking to discredit or intimidate a congressional enemy.

Of course, if Congress were doing a better job of policing its own members, the executive branch might not have been driven to (or at least sought justification for) such extreme measures.

That said, there were more appropriate approaches available to the FBI, such as going directly to the House majority and/or minority leaders.

Having acknowledged that "our government has not faced such a dilemma in more than two centuries," the sensible thing was for Bush to concede a procedural error and order the documents returned to House leadership pending a less constitutionally suspect attempt to retrieve them. Instead, he may have drawn a hard new battle line in a balance of power confrontation that has been brewing throughout his tenure.